Unconstitutional conditions and schools, libraries, and

[Robert Destro]

Alan Brownstein wrote:

     Let us assume that there are no compulsory education laws. But there
     are public schools financed by the state that parents may send their
     children to. Private schools, however, receive no financial support
     from the government. Leaving aside for the moment any establishment
     clause issues that may arise, is there a constitutional obligation to
     provide funding for secular education to parents who send their
     children to religious schools on the grounds that under the system
     described they are being forced to sacrifice their religious
     convictions in order to obtain the benefit of state subsidized secular
     education -- a benefit that is generally available to everyone.

I don't think that this question can be answered in the abstract. Nor do I
believe that the mere elimination of compulsory education laws will make
the hypothetical in any way relevant to the issues being debated.  There is
too much history concerning the public/private school dichotomy to imagine
a hypothetical "clean slate."  Any answer, however, would (or should) take
into account upon:

     1) the language of the relevant state constitutional and/or statutory
     provisions creating the entitlement(s); and

     2) the intent of those provisions (i.e. Do they raise any 14th
     Amendment issues?)

Prof. Brownstein continues:

     If such a constitutional obligation exists, does it also apply to
     other general benefits that are provided through secular institutions?

I have a bit of a problem with the premise of the question.
Unconstitutional conditions analysis is indeed murky, but it is a good way
to attack "structural" discrimination. Education disputes in the US since
the 1820s demonstrate rather clearly that the structure of the system was
intended to guarantee public support of only one religious approach to
education. The "condition" is not "sacrifice of religious convictions", but
precisely the same kind of indoctrination and coercion that appeared in the
prayer and Bible reading cases.  Had the public schools been perceived as
being religiously neutral in the first place, or had they taken steps to
accommodate religious differences (such as those attempted in McCollum),
the perception that the schools were not places of favoritism and
indoctrination might have faded.

The unconstitutional conditions doctrine is, in the education context,
being used as a proxy for what appears to be the real issue: "an
establishment" of one religious view concerning the "proper" relationship
of religion to education, and the use of tax money to pay for it.

     May a religious group argue that library services, medical care
     services, recreational opportunities and other secular benefits
     provided by religious institutions must be subsidized by the state if
     the state finances public hospitals, public libraries, and public
     parks?

Probably not, but I quarrel with what appears to be the underlying
assumption of the question: that "religious groups" are trying to make
claims on "everyone else" to support their "secular" activities.  Religious
groups are every bit as much a part of the community as "nonreligious"
ones. They are, in Madison's lexicon, factions defined by their religious
commitments.

Over time, communities have recognized the contributions made by the
nonpublic sector, and have decided that it may be more efficient to
subsidize the nonpublic institutions than to create "public" ones. In the
non-educational context outside of Blaine Amendment states, these subsidies
are widespread. Thus, there is no need to make an "unconstitutional
conditions" argument: the remedy -- if there is to be one -- is political.

Prof. Brownstein continues:

     Does unconstitutional condition doctrine for first amendment purposes
     (both free exercise and freedom of speech) only apply to egregious
     captive audience situations where people (children or adults) have to
     sit for hours listening to government messages and take tests on what
     they have heard?

This is probably the nub of the First Amendment problem, but why should it
be viewed as an "unconstitutional condition"? If the problem is captive
audience, the problem is the "capture" (i.e. the coercion). If the problem
is the character or viewpoint of the government's speech, the First
Amendment problem is more accurately viewed in structural terms (e.g., what
gives the government the right to use government funds for the purpose of
indoctrinating the public with Republican or Democratic Party propaganda?).

He continues:

     Or would unconstitutional condition doctrine apply whenever a general
     benefit is provided in a context that is religiously or ideologically
     unacceptable for some potential beneficiaries?

     ... If the doctrine is conceptualized in this way, however, it seems
     to require the complete fragmentation of public benefits and services
     along religious and ideological lines. Or is there a constitutional
     distinction that I am missing among those who feel obligated for
     religious reasons to send their children to religious schools as
     opposed to religious libraries, religious recreational centers, and
     religious medical care facilities.

These questions cut to the heart of the problem. You are indeed missing
something important: the legacy of "The Schools Question" that was of major
concern from roughly 1820-1925, when Pierce and Meyer put a stop to
attempts by some common school advocates to abolish nonpublic schools
altogether. The notion that the "common schools" provide all that is
necessary -- or appropriate -- for the education of the community's
children for citizenship and other the other public and private roles they
will assume as adults is a legacy of that period.

Your questions assume that parents "who feel obligated for religious
reasons to send their children to religious schools" are doing so because
they *want* to "fragment" the community along religious and/or cultural
lines.  Such a charge is not a new one: it goes back over 100 years, but it
remains a grossly unfair characterization of the reasons why religious
schools exist. Some exist because of a desire to remain apart from the
larger society, but they are by no stretch of the imagination "fragmenting"
the community, they are doing nothing more than exercising their right to
assemble peaceably for educational purposes. Others exist because parents
or church authorities feel that the "common schools" are either deficient
in their program(s) [of whatever type], or hostile to the belief systems
parents are trying to inculcate in their children.

It is one thing to say "I can't take advantage of Program X because I have
religious qualms about doing so."  It is a far more serious charge to say
that the general benefit is being provided in a manner that is (or has
been) deliberately hostile to the beliefs and attitudes of a group of
potential beneficiaries.  Kiryas Joel is a pristine example: no one -- not
even the Justices -- disputed that the public school was a hostile
environment for the Satmar children. Too bad for them, I guess.

Public libraries, hospitals, museums and parks simply do not raise the same
indoctrination issues. Library collections are large and diverse (a point
of contention for some, to be sure), but the choice of what to read, and
the freedom to interpret what is read without state interpretation of the
messages contained in the books makes them very different from schools.
Hospitals also: unless there were some indication that the hospital were
hostile to a given faith tradition, tried to "train" the patients in the
"proper" way of viewing the moral dimensions of their health problems, or
excluded any faith-based counseling on the grounds that it could not be
party to the transmission of "dogma", there would be no reason to complain.
 Ditto parks, etc., etc.


     Bob Destro
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     Robert A. Destro                                  Destro at law.cua.edu
     Columbus School of Law                                  202-319-5202
     The Catholic University of America                  fax:202-319-4498
     Washington, D.C. 20064-8005                   http://www.law.cua.edu